Longview Fibre Paper and Packaging, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 17, 2009

27-CA-021082 (N.L.R.B. Dec. 17, 2009)

JD(SF)–47-09
Spanish Fork, UT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO BRANCH OFFICE
DIVISION OF JUDGES
LONGVIEW FIBRE PAPER AND
PACKAGING, INC.
and Cases 27-CA-21082
27-CA-21233
27-RC-8534
ASSOCIATION OF WESTERN PULP
AND PAPER WORKERS
Nancy S. Brandt, Esq., Denver, CO, for
the General Counsel.
Jerome L. Rubin, Esq., Seattle, WA, for
the Respondent/Employer.
DECISION
Statement of the Case
Gregory Z. Meyerson, Administrative Law Judge. Pursuant to notice, I heard this
case in Spanish Fork, Utah, on October 20 and 21, 2009. This case was tried following the
issuance of an Order Consolidating Cases, Amended Consolidated Complaint and Notice of
Hearing (the complaint) by the Regional Director for Region 27 of the National Labor Relations
Board (the Board) on July 31, 2009. The complaint was based on a number of original and
amended unfair labor practice charges, as captioned above, filed by the Association of Western
Pulp and Paper Workers (the Union, the Charging Party, or the Petitioner). It alleges that
Longview Fibre Paper and Packaging, Inc. (the Respondent or the Employer) violated Section
8(a)(1) of the National Labor Relations Act (the Act). The Respondent filed a timely answer to
the complaint denying the commission of the alleged unfair labor practices.1
Pursuant to a petition filed by the Union in Case 27-RC-8534, and a Decision and
Direction of Election issued by the Regional Director on October 16, 2008, an election by secret
ballot was conducted on November 13 and 14, 2008,2 among a unit of the Employer’s
employees. Following the election, the Union filed timely objections to conduct affecting the
results of the election (the objections). Thereafter, the Regional Director for Region 27 issued
an Order Directing Hearing on Objections to the Election Outcome, Order Consolidating Cases,
and Notice of Hearing. In his Order on Objections, the Regional Director, among other findings,

1 All pleadings reflect the complaint and answer as those documents were finally amended
at the hearing. In its answer and amendments thereto, the Respondent admits the various
dates on which the enumerated original and amended charges were filed by the Union and
served on the Respondent as alleged in the complaint.
2 All dates refer to 2008 unless otherwise noted.
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ordered that three objections be consolidated with the complaint for purposes of trial before an
administrative law judge.3 Accordingly, I heard the objections to the election at the same time
as I heard the unfair labor practice allegations in this combined matter.
All parties appeared at the hearing, and I provided them with the full opportunity to
participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to
argue orally and file briefs. Based on the record, my consideration of the briefs filed by counsel
for the General Counsel and counsel for the Respondent, and my observation of the demeanor
of the witnesses,4 I now make the following findings of fact and conclusions of law.
Findings of Fact
I. Jurisdiction
The complaint alleges, the answer admits, and I find that the Respondent, a State of
Washington corporation, with an office and place of business in Spanish Fork, Utah (herein
called the Spanish Fork facility), has been engaged in the business of manufacturing paper
products. Further, I find that in the course and conduct of its business operations just
described, the Respondent annually purchases and receives at its Spanish Fork facility, goods,
materials, and services valued in excess of $50,000 directly from points and places outside the
State of Utah.
Accordingly, I conclude that the Respondent is now, and at all times material herein has
been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. Labor Organization
The complaint alleges, the answer admits, and I find that at all times material herein, the
Union has been a labor organization within the meaning of Section 2(5) of the Act.
III. Alleged Unfair Labor Practices and Alleged Objectionable Conduct
A. The Issues
The complaint alleges that the Respondent violated Section 8(a)(1) of the Act during the
Union’s organizing campaign by threatening employees with the loss of a Paid Time Off plan
(PTO); by withholding the amount of a pre-determined wage increase; by threatening
employees with the loss of their annual wage increase; and by informing the employees that if
represented by the Union, they would automatically be foreclosed from participating in their
present pension plan and 401(k) plan. For the most part, the objections to the election track

3 In his Order, the Regional Director approved the Union/Petitioner’s request to withdraw
objections no. 1, 5, and 6, and ordered that objections no. 2, 3, and 4 be heard in this combined
proceeding.
4 The credibility resolutions made in this decision are based on a review of the testimonial
record and exhibits, with consideration given for reasonable probability and the demeanor of the
witnesses. See NLRB v. Walton Manufacturing Company, 369 US 404, 408 (1962). Where
witnesses have testified in contradiction to the findings herein, I have discredited their
testimony, as either being in conflict with credited documentary or testimonial evidence, or
because it was inherently incredible and unworthy of belief.
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these alleged unfair labor practices. Additionally, the complaint alleges that the Respondent
violated Section 8(a)(1) of the Act by maintaining an employee eligibility provision in its pension
plan that foreclosed employees from participating if they were members of a union; by soliciting
grievances from employees and impliedly promising to remedy said grievances; by holding a
“brainstorming” meeting with employees during which grievances were solicited with implied
promises to remedy said grievances; and by, thereafter, adopting one of the proposals from the
“brainstorming” meeting, specifically implementing a change in the shift schedule of graveyard
employees.
The Respondent takes the position that its conduct neither violated the Act, nor served
as a basis for overturning the results of the election.
B. The Undisputed Facts
In the representation matter before me, Case 27-RC-8534, the Union filed a
representation petition for an election on September 3, 2008, and the election took place on
November 13 and 14, 2008.5 As was reflected on the Tally of Ballots, the results of the election
were that of the 135 valid votes counted, 77 votes were cast against representation by the
Union, and 58 votes were cast in favor of the Union. There were 4 challenged ballots.6 (G.C.
Ex. 1(I).)
It was during the “critical period” from the filing of the petition on September 3 to the
time the election concluded on November 14 that the alleged objectionable conduct and certain
of the alleged unfair labor practices were committed. Additionally, in her post-hearing brief,
counsel for the General Counsel argues that the Respondent’s alleged unfair labor practices
occurring after the election, namely the solicitation of grievances and promises to remedy said
grievances, including a “brainstorming group” meeting, and the implementation of a graveyard
shift change, were committed during a second “critical period,” which commenced as of the date
of the first election.7
To a large extent, the facts in this case are not really in dispute. The Respondent, in
addition to being in the timber and lands business, manufactures heavy duty paper products at
a large pulp and paper mill in Longview, Washington, where the Employer is based.
Additionally, the Respondent manufactures corrugated boxes at a number of plants throughout
the Western part of the United States, including at the Spanish Fork facility. Most of the
Respondent’s facilities are unionized, with two exceptions being the Spanish Fork facility and
another box plant located at Cedar City, Utah.

5 Pursuant to a Decision and Direction of Election issued by the Regional Director for
Region 27 on October 16, 2008, an election by secret ballot was conducted on November 13
and 14 among the employees in the following appropriate unit: All full-time and regular part-
time production, maintenance, and warehouse employees, custodial employees, lead
employees, local truck drivers, ink kitchen, print die mounters, maintenance clerks, shipping
clerk and receiving clerk employed by the Employer at its Spanish Fork, Utah facility; excluding
all other employees, managerial employees, office clerical employees, the printing plate maker,
the print and die clerk, guards, and supervisors as defined by the Act. (G.C. Ex. 1(d).)
6 Challenged ballots were insufficient in number to affect the outcome of the election.
7 Any such second “critical period” is premised on the General Counsel’s contention that the
commission of objectionable conduct by the Respondent warrants the setting aside of the first
election and the holding of a new election, creating a second “critical period” following the first
election. Star Kist Caribe, Inc., 325 NLRB 304 (1998).
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In the recent past, there has been a significant amount of attrition in the Respondent’s
managerial and supervisory hierarchy. For a period of time, including during the summer and
fall of 2008, Frank McShane was the Respondent’s President and Chief Operating Officer,
based at the Respondent’s corporate offices in Longview, Washington. He left the
Respondent’s employ in February 2009. At the time of the election, the highest ranking official
working at the Spanish Fork facility was the Respondent’s Vice President, Todd Price. Next in
line was Plant Manager Dave Wride. Neither man is currently employed at the facility.
The Union’s organizational campaign officially began with the filing of the representation
petition on September 3, 2008. However, even before that date the Respondent began to hold
a series of “informational meetings” with employees at the Spanish Fork facility where “Power
Point” presentations where shown to the assembled employees and company officials were
available to make oral presentations and answer questions. Such meetings were held
specifically on August 14 and 15, September 25 and 26, October 27 and 28, and November 10
and 11, 2008. The principal management speaker at most of these meetings was Frank
McShane, who came from the Respondent’s corporate offices specifically to participate, with
David Wride occasionally speaking. The Power Point presentation slides shown at these
meetings are all in evidence. (Jt. Ex. 1-4.) On each of the above dates two or three meetings
were held so as to accommodate the employees working the various shifts. Employees were
required to attend and were paid for their attendance.
Prior to January 2009, most of the Respondent’s production, maintenance, and
warehouse employees worked on a three-crew shift rotation schedule. However, numerous
employees testified that for years there had been much disagreement over what type of
schedule would be best for the Spanish Fork facility’s business operation and for the
employees’ life styles. In any event, as of January 1, 2009, the rotating crews were eliminated
and employees were assigned to straight day, swing, and graveyard shifts, starting Monday
morning and ending Sunday morning. In late April 2009, following the “brainstorming meeting,”
one of the issues in this case, the graveyard schedule was changed slightly, by having the
graveyard workers start work on Sunday night, instead of Monday morning, to allow those
workers to start their weekend on Friday morning instead of Saturday morning. Finally, in mid-
September 2009, the shift schedule was changed back to the rotation schedule that had been in
effect prior to January 2009.
In June of 2008, apparently prior to any organizing efforts by the Union, the Respondent
announced a series of benefit changes, all of which were scheduled to take effect as of
January 1, 2009. These changes included medical insurance cost increases, changes to the
pension and 401 (k) plan, and changes to the Paid Time Off (PTO) plan. Regarding the PTO
plan, the Respondent’s policy had previously been that an employee with four weeks accrued
PTO could only take one week in single day-at-a-time increments. The remaining three weeks
had to be taken in blocks of at least one week. However, in the June 2008 announcement, the
Respondent informed its employees that it intended to change this policy starting January 1,
2009 to allow employees to take all their accrued PTO one-day-at-a-time. This apparently was
a change that the employees had been seeking for some time. The announced changes to the
pension plan, which was to “freeze” it at its present level, and to the medical insurance plan,
which was to begin increasing employee contributions, were not well received by the Spanish
Fork facility’s employees, and were what appears to have precipitated the organizing campaign.
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The complaint alleges in paragraphs 5(a)-(d) that at the employee meetings held on
November 10 and 11, 2008, Frank McShane made certain statements, either orally or through
other communication, presumably the Power Point slides, which constituted a violation of
Section 8(a)(1) of the Act. Accordingly, the substance of these alleged statements will be
discussed at length in the disputed facts and analysis section of this decision.
It is uncontested that during the critical period, and apparently for some time prior, the
Respondent maintained a pension plan, the summary plan description of which indicated that it
was established for the benefit of all employees “who are not represented by a union that
bargains with the Company.” (Jt. Ex. 5.) Further, the same statement is essentially repeated in
the complete version of the pension plan (the summary plan description and plan document),
which was in effect during that period of time. (Jt. Ex. 6.) A number of employees indicated that
they had access to the pension plan and/or the summary, and would, therefore, have had
access to the above quoted language. However, as of January 1, 2009, the Respondent’s
pension plan was amended to reflect that employees are not eligible to participate if they are
“covered under a collective bargaining agreement where retirement benefits were the subject of
good faith bargaining which does not provide for retirement benefits under this Plan.” (Jt. Ex. 7.)
The Respondent’s history of granting a general wage increase for the employees at the
Spanish Fork facility is also undisputed. For many years, the Respondent has announced a
general wage increase by interoffice memorandum sometime between mid-October and mid-
November, with payment of the increase retroactive to October 1. Although there have been
some deviations in the amount of the increase, for most recent years it has been 3 percent. It
appears that the Respondent followed that practice in 2008. The Respondent announced the
2008 increase by posting a memorandum the afternoon of the vote count (November 14), which
informed the employees that they were getting a 3 percent increase, retroactive to October 1,
2008. (Jt. Ex. 8-13) However, the General Counsel contends that certain statements made by
the Respondent’s agents on November 10 and 11, 2008, regarding the general wage increase
constituted a violation of the Act, and those will be discussed in detail in the disputed facts and
analysis section of this decision.
As noted above, the Union lost the election, but filed a number of timely objections to the
results. In February 2009, the Respondent’s Corporate Communications Manager, Laura Prisc,
visited the Spanish Fork facility and had a series of meetings with employees one-on-one and
also in small groups. The purpose of her visit was apparently to follow up on some employee
complaints, in particular employee displeasure with the new three shift production schedule.
On March 12, 2009, Labor Relations Manager Rick Howell also visited the facility, with
the intention of completing the work that Prisc had started. Local management selected a
number of employees for Howell to meet with, and he held a meeting with those employees
referred to as the “brainstorming group.” As with Prisc, Howell seemed interested in employee
complaints, specifically the displeasure with the three shift production schedule. During the
brainstorm meeting, he received suggestions from the assembled employees regarding their
production schedule type preferences, and subsequently followed the meeting with telephone
calls to a number of the employees who attended the meeting and were to canvass their fellow
workers. In a memorandum to Dave Wride dated March 14, updated March 25, 2009, Howell
summarized the production scheduling options that the employees had suggested. (Jt. Ex. 14.)
However, Wride testified that the final decision was his alone to make. In any event, Wride
decided to only change the existing three shift production schedule slightly, affecting only the
graveyard shift workers. This change was in fact one of the proposed production shift changes
recommended by certain of the “brainstorming group.”
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The General Counsel alleges in complaint paragraphs 7, 8, and 9 that the Respondent
unlawfully solicited grievances from employees, impliedly promised to remedy said grievances,
and did actually remedy an employee grievance, all as a result of the actions taken by Prisc,
Howell, and Wride regarding the displeasure expressed by the employees over the shift
production schedule. These issues will be dealt with in detail in the following section of this
decision.
C. The Disputed Facts and Analysis
The complaint alleges that the Respondent, through its President, Frank McShane,
committed a number of unfair labor practices when speaking with and presenting a Power Point
display to assembled employees at captive audience meetings held on November 10 and 11,
2008. As noted earlier, there is no question that McShane was the principal management
speaker at a number of meetings with employees held on those dates, shortly before the
election on November 13 and 14. McShane and a number of employee witnesses all testified
that the method of presentation used by McShane was to put up each individual slide, after
which he would comment on the subject of the slide and take questions from the employees in
the audience. The parties have moved into evidence all the slides used by the Respondent in
the various meetings held from August through November. McShane was present and
participated in almost all those meetings. However, as is reflected in complaint paragraphs
5(a)-(d), it was only at the meetings held on November 10 and 11 where McShane’s conduct is
alleged to be unlawful. Further, only certain slides from those meetings, in conjunction with
McShane's oral statements, are alleged to constitute a violation of the Act. (Jt. Ex. 4.)
It is alleged in paragraph 5(a) of the complaint that McShane threatened employees with
the loss of the recently implemented Paid Time Off plan (PTO), if they voted in favor of the
Union. As noted earlier, it is undisputed that in June 2008 the Respondent announced a
number of benefit changes to be effective on January 1, 2009. One of those changes, which
employees had apparently sought for some time, was to allow employees to take all accrued
paid time off days in single day-at-a-time increments, rather than requiring that with the
exception of the first week, all subsequent time be taken in weekly increments. It appears that
at the time of the November meetings the PTO plan had not yet changed, but was scheduled to
do so as of January 1, 2009.
While a number of employee witnesses appearing on behalf of the General Counsel
testified about what McShane had to say regarding the PTO plan, I believe that the best
evidence comes from McShane himself, whose testimony in this regard essentially constituted
admissions against interest. According to McShane, when he was questioned by employees
about what would happen with the new PTO plan if the Union won the election, he responded
that the PTO, like wages and benefits, “are really part of the subject for negotiation.” He told
them that as of the date of the meeting, “[I] can’t tell you what [the PTO plan] would look like…
until we’ve gone through the negotiation process.” This statement was consistent with
McShane’s theme through out the election campaign, essentially that everything was open to
negotiation if the Union won the election, and that the Employer would not know until the
negotiations were concluded what the wages and benefits would be for the employees. He
often compared negotiations to a “pie,” saying that each piece of the pie, whether wages or
benefits, had a cost, and until the whole pie was done and its cost known, the Employer would
not know what each individual piece of the pay would cost or would look like.
Further, his statement regarding the PTO plan was consistent with the Power Point
slides that were shown to employees in November. A pair of consecutive slides mentioning the
PTO was part of the presentation. On the first slide it indicated at the top, “A Choice Between
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the Known,” meaning the system that was scheduled to go into effect on January 1, 2009.
Further down the page, where the PTO was referenced, it said, “PTO Usage Restrictions: May
take all PTO one day at a time; all must be prearranged.” (Jt. Ex. 4, p. 23.) This, of course, was
the changed policy to go into effect in a few months, which had been announced in June, and
which was a change long sought after by the employees. The following page was headed, “...
[ellipse existing in text] and the Unknown (Bargaining).” Then, under PTO and PTO in days,
there were question marks (“?”). (Jt. Ex. 4, p. 24.) This was intended to mean that if the Union
won the election and bargaining commenced, it was uncertain what the ultimate PTO plan, if
any, would provide.
The Respondent defends the slide presentation and McShane’s statements as merely
explaining the reality of the situation, with all wages and benefits ultimately depending upon the
negotiation process, assuming the Union were to win the election. Counsel for the Respondent
does not consider such “truthful” statements about the bargaining process to constitute threats
to the employees. On the other hand, counsel for the General Counsel contends that
McShane’s statements and the slide presentation constituted an unlawful threat to take way
from the employees what they had been promised in June and was to become effective in
January 2009, namely the new, sought after PTO plan. As such, counsel argues it constituted
the threat of a loss of benefit for the employees if they voted in favor of the Union.
In this regard, the law is clear. It is unlawful to tell employees that an employer intends
to withhold an announced benefit if the union wins the election. In Earthgrains Baking
Companies, Inc., d/b/a Redding French Bakery, 339 NLRB 24, 28 (2003), enfd. 116 Fed Appx.
161 (9th Cir. 2004), the Board stated that, “in the midst of an on-going union organizing or
election campaign, an employer must proceed with an expected wage or benefit adjustment as
if the organizing or election campaign had not been in progress. Grouse Mountain Lodge, 333
NLRB 1322, 1342 (2001); America’s Best Quality Coatings, Corp., 313 NLRB 470, 484 (1993);
Atlantic Forest Products, 282 NLRB 855, 858 (1987).” However, proceeding with the expected
benefit was precisely what the Respondent did not intend to do in the case before me. Both
orally and by way of the slide presentation, McShane informed the employees that if the Union
won the election, the announced and employee desired change to the PTO plan would not go
into effect as promised on January 1, 2009. Rather, the employees were told that the PTO plan,
and all other issues, would be subject to the negotiation process.
The Employer was linking the implementation of the new PTO plan to the upcoming
election. Although it was previously announced that the improved PTO plan would go into effect
on January 1, 2009, employees where told at the November meetings that if the Union won the
election, the plan would not go into effect, but instead the issue would be negotiated with the
Union. This constituted a not very subtle warning and threat that if the employees wanted to
see the new PTO plan implemented on January 1, 2009, they should vote against the Union.
This threat interfered with, restrained, and coerced them in the exercise of their Section 7 rights.
As such, I find that the Respondent’s action constituted a violation of Section 8(a)(1) of the Act,
as alleged in paragraph 5(a) of the complaint.
Paragraph 5(b) of the complaint alleges that on November 10 and 11, 2008, McShane
told employees that the Respondent was withholding the amount of their pre-determined wage
increase until after the election to induce employees to vote against the Union. It is further
alleged in paragraph 5(c) that at the same time McShane threatened employees with the loss of
their wage increase if they voted in favor of the Union. Once again, McShane’s oral comments
and the Power Point slide presentation for those dates must be examined. It is also necessary
to view what the employees were told in November in conjunction with the Employer’s past
practice. As was noted above, the Respondent had for many years announced, sometime
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between mid-October and mid-November, a general wage increase for the production
employees at the Spanish Fork facility, to be effective January 1, 2009, retroactive to October 1,
2008. In most years, the increase had been 3 percent.
One of the Power Point slides shown to employees at the pre-election captive audience
meetings in November of 2008 was captioned “Questions & Answers.” The slide then asks the
question, “If a Union isn’t voted in, when would we find out about our General Increase and
would it be retroactive?” The slide answers the question by first indicating it is a “delicate
subject” because of the union campaign, and that it is “illegal” for the Respondent to “promise”
the employees “anything.” The slide continues answering the questions as follows: “However,
once the election has concluded and if we are Union-Free we will treat Spanish Fork like other
Hourly Non-Union plants. We would communicate our General Increase decision in a very
timely manner as we have already completed our review process.” Regarding the issue of
retroactivity, the slide states that “we wouldn’t do anything differently from what we have done
historically.” (Jt. Ex. 4, p. 20.)
It is important to note that the slide makes it clear that as of November 10 and 11, 2008
(the dates of the presentation), the Respondent had already “completed” the general wage
increase review process. That meant that as of those dates, the Respondent knew the
percentage increase that the employees would get as of January 1, 2009, the historic date the
increase became effective, and further that, as indicated in the slide, the increase would be
retroactive to the first day of October 2008. However, the slide also made it clear that the
increase would only be communicated to the employees once the “election has concluded and if
we are Union-Free.” Under those circumstances, the slide promised the information would be
released to the employees in a “timely manner.”
In my view, the reasonable conclusion one would draw from the language of the slide
was that if the Union lost the election that the employees would be quickly told the amount of
the general increase, which they would subsequently receive, retroactive to October 1.
However, if the Union won the election, the wage increase, the amount of which was already
determined, would not be announced, would be withheld, and would not be retroactive to the
first day of October.
Such a reading of the slide is consistent with the Respondent’s argument and
McShane’s repeated statements to the employees that if the Union won the election every
issue, including wages and benefits, would be negotiable. Several other slides shown to the
assembled employees on November 10 and 11 are in conformity with the Employer’s approach.
One slide, previously examined, captioned “A Choice Between the Known…,” shows the
general increases given over the last 5 years as 3 percent, with the present year as “TBD.” (Jt.
Ex. 4, p. 23.) The very next slide, also previously examined, captioned “… and the Unknown
(Bargaining),” shows besides the heading of “General Increase,” a “?”(question mark). (Jt. Ex,
4, p. 24.) It is fairly obvious that the idea, which the Respondent is attempting to leave with the
reader through the two Power Point slides, is that under the current non-union arrangement, the
employees are likely to be getting a 3 percent general wage increase. However, if the Union
wins the election, bargaining will commence, and whether a wage increase will be granted, and
if so, for how much, is unknown, as it will be the subject of that bargaining.
While a number of employee witnesses testified on behalf of the General Counsel
regarding McShane’s statements on November 10 and 11, 2008, his own testimony is the best
evidence of what he had to say about the general wage increase, as once again those
statements appear to be admissions against the Respondent’s interest. McShane’s testimony
was consistent with the Power Point slides. He admits telling the assembled employees that the
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Employer had “completed” the wage increase review process, but he did not inform the
employees as to the amount of the wage increase that had been decided upon.
McShane testified that as of the November dates, the Employer had decided that the
increase was to be 3 percent, but had also decided that if the Union won the election, the
increase would “not be implemented” until it understood, through the bargaining process, “the
full impact of all the potential costs.” With the exception of telling the employees that precisely 3
percent had been decided upon, he informed them of the Respondent’s deliberative process.
Specifically, he told them that if the Union won the election, everything would become the
subject of bargaining including any general wage increase, the amount of which would not be
known until all costs were decided. Of course, this was consistent with McShane’s statements
regarding the PTO plan, and with the analogy that negotiations could be viewed as a “pie,” with
each piece of the pie constituting an individual cost to be included in the overall cost. He
acknowledged that the “?”(question mark) on the slide next to the reference “General Increases”
was intended to “convey” the message that the amount of the wage increase, if any, was
dependent on the collective bargaining process. (Jt. Ex. 4, p. 24.)
Finally, McShane acknowledged that on November 14, immediately after learning that
the Union had lost the election, he directed that the employees be notified that the wage
increase was to be 3 percent, retroactive to October 1, 2008. The Respondent was able to act
immediately, as the decision to increase wages 3 percent had previously been made. This led
to the posting of a notice around the facility advising of the new wage rate and entitled “General
Wage Increase and Benefit Changes.” (Jt. Ex. 13.)
As noted earlier, it is clear under Board law that during an organizing campaign an
employer must proceed with an expected wage or benefit increase as if the union organizing or
election campaign had not been in progress. See e.g. Earthgrains, supra. Further, the Board
has made it equally clear that during an election campaign an employer acts improperly when it
attributes a wage increase postponement to the union. In Atlantic Forest Products, Inc., 282
NLRB 855, 858-859 (1987), the Board, agreeing with the administrative law judge, found certain
statements in an employer’s newsletter unlawful as, “such statements suggest an ‘immediate
[wage] increase without a union but a delay for an indefinite period of negotiations for an
uncertain increase with a union.’”
The issue in the case at hand is governed by the holding in the above two cited cases.
The oral statements of McShane and the Power Point slides heard and viewed by the
assembled employees on November 10 and 11, 2008, were obviously intended to leave
employees with the impression that if they wanted their regular yearly general wage increase,
they should vote against the Union. Otherwise, the collective bargaining process would apply,
and it was uncertain whether that negotiating process would result in a wage increase at all, and
if so, for how much.
Further, the Respondent’s actions were not insulated by any statements that the
postponed implementation of a wage or benefit increase was not dependent on the results of
the election, and the sole purpose for the postponement was to avoid the appearance of
influencing the outcome of the election. KMST-TV, Channel 46, 302 NLRB 381, 382 (1991). In
fact, in the case before me, no such exculpatory statements were made. Rather, the
Respondent was laying the entire blame for the delay in receiving the wage increase, or in
potentially not receiving it at all, on the collective bargaining process, which process would only
be triggered by the Union winning the election.
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While at first glance complaint paragraphs 5(b) and (c) seem repetitious, further analysis
does show subtle differences. Paragraph 5(b) alleges the “withholding” of the pre-determined
wage increase until after the election to induce employees to vote against the Union as a
violation of the Act. As noted above, the Respondent, through McShane, acknowledged to its
employees on November 10 and 11 that the review process was completed and the amount of
the increase determined, but refused to release the information until after the election, and only
assuming the Union lost, eliminating the need to engage in the collective bargaining process.
Further, the Respondent’s slide presentation promised releasing the sought after information “in
a very timely manner” in the event the Union lost. True to its word, that is precisely what the
Respondent did, immediately upon learning the results of the election. In my view, by telling the
employees that it was going to withhold information on the wage increase until after the results
of the election were know, and if the Union won, perhaps indefinitely, the Respondent interfered
with the exercise of its employees’ Section 7 rights.
In regard to complaint paragraph 5(c), the Respondent is alleged to have threatened
employees with the “loss” of their annual wage increase if they voted in favor of the Union. This
allegation takes the “withholding” of the increase to its ultimate possible end. Based on the
statements made by McShane and the Power Point presentation of November 10 and 11,
employees were left to ponder the possibility that the collective bargaining process might result
in the parties agreeing to no wage increase at all for the foreseeable future. Certainly,
McShane’s explanation of the bargaining process was designed to cause the employees to fear
that the overall cost of negotiating a contract might result in no increase in wages. Since the
past practice was to grant such an increase, and as the employees had already been told that
the Employer had decided on an increase, the Respondent’s actions in suggesting that said
wage increase might not be given timely and could ultimately be lost entirely were designed for
the purpose of frightening the employees with the prospect of a Union victory in the election.
Based on the above, I conclude that the Respondent’s actions, as alleged in complaint
paragraphs 5(b) and (c), interfered with, restrained, and coerced its employees in the exercise
of their Section 7 rights. Accordingly, I find that in so doing the Respondent has violated
Section 8(a)(1) of the Act.
In complaint paragraph 5(d) it is alleged that at the captive audience meetings in
November 2008, McShane communicated to the employees that if the Union was selected as
their bargaining representative, they would automatically be foreclosed from participating in their
present pension plan and 401(k) plan.
It is undisputed that during the critical period employees had access to certain
documents, which specified the eligibility for participation in the Employer’s pension plan. As
noted above, a summary pension plan document stated, “This Plan was established by
Longview Fibre Company for all employees who are not represented by a union that bargains
with the Company.” (Jt. Ex. 5.) Further, the full pension plan document, referenced as
Summary Plan Description and Plan Document, contained essentially the same language
regarding eligibility for participation in the plan. It stated, “If you are an employee who is not
represented by a union that bargains with the Company, you will become a member of this Plan
after completing one year of qualifying service before reaching age 61.” Later on that same
page in the document it stated, “If you were formerly represented by a union that bargained with
the Company, you will become a member of this Plan at such time as you cease to be so
represented and have accumulated one or more years of qualifying service before reaching age
61.” (Jt. Ex. 6, p. II-1)
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At the hearing, one employee witness, Calvin Robertson, testified at some length about
receiving the full pension plan document approximately a year after he was hired, at around the
time that he became eligible to participate in the pension plan. He testified that at the
November 2008 captive audience meeting that he attended, McShane informed the employees
that the company pension plan was different from the union pension plan, and that if the Union
won the election, the represented employees would be “transitioning” from the company plan to
the union plan. According to Robertson, McShane indicated that the union pension plan was
not as good as the company plan. When McShane testified he spoke about the Respondent’s
pension plan and the changes to the plan that had been announced to the employees in June
2008, to be effective January 1, 2009. However, he did not deny nor comment about the
statements that he had allegedly made regarding union represented employees losing eligibility
for the company plan.
I credit Robertson’s testimony regarding what McShane had to say about the pension
plans. Robertson seemed credible, his testimony was not denied by McShane or any other
witness, and it was inherently plausible and consistent with the documentary evidence. As
previously noted, the Respondent’s pension plan documents in effect at the time unambiguously
states that employees who are represented by a union for collective bargaining purposes are
not eligible for the company pension plan. Further, the Power Point slide presentation shown to
the employees at the November 10 and 11 meetings essentially gave the same message.
One of the slides, under the heading “Questions and Answers,” dealt with the company
pension plan. It repeated the Respondent’s recurring theme that since all issues would be the
subject of collective bargaining, there was no way to know what a negotiated pension plan might
look like. However, the slide went on to say that, “The Salaried Pension Plan that is currently in
place specifically excludes employees covered under a collective bargaining agreement. LFPPI
maintains a separate plan for Union employees.” (underscoring as in the original.) (Jt. Ex. 4, p.
21.)
Under Board law, the language in the two company pension plan documents (Jt. Ex. 5 &
6.), the language in the Power Point slide presentation (Jt. Ex. 4, p. 21.), and McShane’s
statements of November 10 and 11 regarding the company pension plan are all unlawful as
communication to employees that they would automatically be foreclosed from participating in
the existing company pension plan if the Union won the election. In Lynn-Edwards Corp., 290
NLRB 202, 205, & at fn. 16 (1988), the Board held that language in an employer’s handbook
and ESOP8 plan summary that eligibility for the plan was for “[a]ll full-time employees, except
those covered by collective bargaining agreement” was unlawful.
The Board contrasted this with KEZI, Inc., 300 NLRB 594, 595 (1990) where it reached a
contrary result because the language excluded from the 401K plan “employees who are
members of a collective bargaining unit with whom retirement benefits were the subject of good
faith bargaining.” The Board went on to say that the plan language “indicates that the exclusion
of unit employees is triggered only by the completion of good-faith bargaining---not by the mere
commencement of bargaining on this topic.” Further, the Board found the language appropriate
because it “made the unit employees aware that they would be eligible for this 401K plan prior
to negotiations and that before they can be excluded from the 401K plan, there must have been
full good-faith negotiations about retirement benefits….”

8 Employee stock option plan.
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The above two cited cases make a clear distinction between plan language that appears
to suggest that employees are “automatically” foreclosed from inclusion in the plan simply
because they are represented by a union bargaining on their behalf, which is unlawful, and
language that indicates that only after the completion of good-faith bargaining may represented
employees be excluded from the plan, which is not unlawful. In the matter before me, the
language communicated to the unit employees in writing and through McShane’s oral
statements falls under the first category. They are unlawful statements because the employees
are being told that if they are represented by the Union for purposes of collective bargaining,
they can not be eligible for the company plan. Although the Respondent makes frequent
references to the collective bargaining process and the uncertainties of negotiations throughout
its Power Point presentation, such references do not unambiguously assure the employees that
good faith bargaining will need to specifically cover the pension plan and be concluded before a
determination is made that they are ineligible for the company plan.9
I am of the view that the oral statements made by McShane, the written pension plan
documents, and the slide presentation were intended to cause the employees to fear that if the
Union won the election, they would automatically be foreclosed from participation in their
present company pension plan. This course of conduct interfered with the unit employees’
exercise of their Section 7 rights. Accordingly, I conclude that the Respondent’s actions
constituted a violation of Section 8(a)(1) of the Act, as alleged in complaint paragraph 5(d).10
The complaint alleges in paragraph 6 that between September 3, 2008 and January 1,
2009, the Respondent maintained an employee eligibility provision in its pension plan in which
some employees participated that foreclosed employees from participating if they were
members of a union. For the most part, the substance of this allegation was covered above in
the discussion of complaint paragraph 5(d). As I have already concluded, the Respondent
maintained in its pension plan summary document (Jt. Ex. 5.) and in the full pension plan
document (Jt. Ex. 6.) language that was unlawful as it informed the unit employees that they
would automatically be foreclosed from participating in their present pension plan if they were
represented by a union. See Lynn-Edwards Corp., supra; KEZI, Inc., supra.
Interestingly, the Respondent must have decided that the language in question was
unlawful, because as of January 1, 2009, the Respondent amended its pension plan document
to remove the offending language. The amended language now reads that an employee is
ineligible to participate in the company pension plan if he/she “is covered under a collective
bargaining agreement where retirement benefits were the subject of good faith bargaining which
does not provide for retirement benefits under this Plan.” (Jt. Ex. 7.) Such amended language
does appear to be in compliance with the Board’s holding in the Lynn-Edwards Corp. and KEZI,
Inc. cases.

9 Although the Power Point presentation makes reference to pension benefits being the
“subject of bargaining,” the process is not fully explained. (Jt. Ex. 4, p. 21.) Further, the
statements in the plan documents that union represented employees are ineligible to participate
in the company plan make no reference at all to the collective bargaining process. (Jt. Ex. 5 &
6.)
10 While complaint paragraph 5(d) mentions both the pension plan and 401(k) plan, the
evidence presented in this case by counsel for the General Counsel was limited exclusively to
the existing pension plan. Accordingly, regarding this complaint allegation, my decision is
limited to the finding of a violation regarding only the pension plan.
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In any event, I conclude that from at least the start of the critical period on September 3,
2008, until January 1, 2009, the Respondent interfered with the Section 7 rights of its
employees by maintaining an employee eligibility provision in its company pension plan that
foreclosed employees from participating if they were represented by a union. Accordingly, I find
that by its action the Respondent violated Section 8(a)(1) of the Act, as alleged in complaint
paragraph 6.
The remaining substantive allegations in the complaint, paragraphs number 7, 8, and 9,
all involve alleged conduct by the Respondent following the election of November 13 and 14. It
is the General Counsel’s position that this conduct occurred during a “second critical period,”
which commenced at the time of the election, since the Respondent had committed
objectionable conduct during the original critical period. As will be more fully discussed below, I
have found that certain of the unfair labor practices committed by the employer during the
original critical period also constituted objectionable conduct warranting a new election. Under
such circumstances, the Board has held that a second critical period begins at the time of the
first election and ends at the time of the second election. Star Kist Caribe, Inc., 325 NLRB 304
(1998). Accordingly, I will view the Respondent’s post-election conduct in that context.
Complaint paragraphs 7, 8, and 9 are all factually related. The General Counsel is
alleging that in February 2009 the Respondent’s Corporate Communications Manager, Laura
Prisc, solicited employee grievances and impliedly promised to remedy said grievances during a
visit to the Spanish Fork facility (paragraph 7). Further, it is alleged that some two weeks later
Corporate Human Resources Manager Rick Howell held a “brainstorming group meeting” for
certain employees at the facility where he solicited grievances from employees and impliedly
promised to remedy said grievances (paragraph 8). Finally, it its alleged that in late April 2009,
Plant Manager David Wride adopted one of the proposals that employees had made during the
“brainstorming group meeting” to implement a change to the graveyard employees’ shift
schedule (paragraph 9).
There is really no factual dispute regarding these allegations. As is detailed in the
undisputed facts section of this decision, employees have historically disagreed among
themselves regarding the type of shift schedules they preferred. There have been numerous
changes to the shift schedules over the years as management tried different approaches to
efficiently operating the facility, servicing their customers, and satisfying employee desires. No
system satisfies all the employees and, so, some continue to complain no matter which shift
schedule is in effect.
There appears to be no doubt that Prisc came to the Spanish Fork facility from the
corporate headquarters for the purpose of meeting employees and listening to their complaints.
She met with them individually and in small groups. While she apparently heard complaints on
various subjects, not unexpectedly, there were a number of employees who complained about
the existing shift schedule. It seems that Howell’s visit several weeks later was intended to
address the shift schedule complaints in particular. A group of employees was selected by
management to meet with him, which was referred to as the “brainstorming group.” During the
meeting, Howell sought suggestions from the employees and votes were taken to determine
which shift schedule was the most popular. Following the meeting, Howell contacted a number
of the participants by phone to find out whether their fellow employees had voiced any
preference. The results of his study were furnished by Howell to Plant Manager Wride through
a written memorandum dated March 14 and 25, 2009. (Jt Ex. 14.) Subsequently, Wride made
what appears to be a rather minor change in the shift schedule of the graveyard employees. He
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testified that the final decision was his, but that he considered those suggestions that had been
made by the employees. The change which he ultimately decided on had, in fact, been one of
the suggestions raised at the “brainstorming group meeting.”
There is a long line of Board and court cases that stand for the proposition that an
employer with an established practice of soliciting and resolving employee grievances may
continue that practice during an organizing campaign. Johnson Tech., Inc., 345 NLRB 762, 764
(2005) (”It is well established that an employer with a past practice of soliciting employee
grievances may continue such a practice during a union’s organizational campaign”); TNT
Logistics N. Am., Inc., 345 NLRB 290 (2005) (no violation during ongoing union organizing
campaign where employer had a past practice of soliciting grievances through an “open door”
policy); Wal-Mart Stores Inc., 339 NLRB 1187, 1187 (2003) (“An employer who has a past
policy and practice of soliciting employees’ grievances may continue such a practice during an
organizational campaign”); Wal-Mart Stores, Inc., 340 NLRB 637, 640 (2003) (“It is well
established that an employer with a past practice of soliciting employee grievances through an
open door or similar-type policy may continue such a policy during a union’s organizational
campaign.”); Curwood, Inc., 339 NLRB 1137 (2003), aff’d in part, vacated in part, 397 F.3d 548
(7th Cir. 2005) (employer’s continued practice of allowing employee questions did not violate the
Act); see also MacDonald Mach. Co., 335 NLRB 319 (2001). Of course, the question that must
be answered in the case before me is whether the Respondent had such a past practice at its
Spanish Fork facility.
Based on the evidence presented at the hearing, I am of the view that the Respondent
did have a history of soliciting employee suggestions, concerns, complaints, and positive
comments, and of resolving complaints when possible. The most obvious examples of its past
practice were two detailed surveys taken of employee attitudes by Intermountain Human
Resource Manager William Bundrock in 2006 and 2007. In his capacity as human resource
manager, he has responsibility for three of the Respondent’s box plants, including the Spanish
Fork facility. Upon being hired almost four years ago, Bundrock met with every employee at
Spanish Fork. He testified that he discussed at length with each employee “what they felt they
needed…any concerns that they had.”
Of particular significance, in both 2006 and 2007 Bundrock conducted a written survey of
all the employees at the facility. (Res. Ex. 1, 2(a)-(d), & 5.) The 2006 surveys themselves were
entitled, “Employee Satisfaction Survey.” (Res. Ex. 5.) Among other information, the surveys
solicited employees for suggestions and changes that they would like to see made. The
surveys asked employees for a wide variety of information about their jobs and working
conditions. As an example, one question asked was, “What changes would you make to
improve overall working environment or your motivation?” (Res. Ex. 5) The employee
responses were thereafter furnished to management to determine what appropriate action
should be taken in response to the employee’s feedback, suggestions, and complaints. One of
the employee suggestions from the survey was to institute written job descriptions for various
jobs and a testing system for promotion to those jobs. According to Bundrock, those
suggestions were implemented. (Res. Ex. 3, corrugator stacker operator.) These interactions
between Bundrock and the employees were conducted long before the start of the Union’s
organizing campaign.
Former plant manager David Wride testified that throughout his tenure with the
Respondent in various supervisory positions, he was regularly involved in communication with
employees on the plant floor to determine what changes employees needed to more effectively
perform their jobs. As an example, he mentioned employee complaints about excessive heat in
the summer months, which resulted in the Employer installing large fans, evaporative coolers,
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and drinking fountains throughout the facility. Another employee suggestion implemented by
the Respondent was to use a “floating holiday” unique to each employee instead of a general
holiday on Founders Day.11 Such suggestions by employees were the result of group meetings
held by the Respondent from time to time. These meetings predated the Union’s organizing
campaign by a number of years.
Employee witness Steven Scott testified on behalf of the General Counsel. However, on
cross-examination he acknowledged that for years before the union campaign David Wride had
the habit of walking through the plant every morning talking to employees and asking them how
their jobs were going and what could be done to improve working conditions or productivity at
the plant. According to Scott, he always had suggestions and Wride would listen to them. He
recalled one particular incident in 2005 where he suggested to Wride that a safety hazard
existed with scrap material building up around his machine. As a direct result of Scott’s
suggestion, the Employer built a scrap conveyor directly underneath the stacker machine to
eliminate any safety concerns. Further, Scott testified that in past years, on a fairly regular
basis, approximately quarterly, management would call employee meetings, run by the plant
manager, or some company official from headquarters, where employees would be encouraged
to make suggestions. However, he testified that there had not been one of these meetings in a
number of years.
Counsel for the Respondent has demonstrated that the Employer’s efforts to encourage
employees to make suggestions, for the Employer to listen to those suggestions, and to act on
them positively when possible were not a recent phenomenon. I was especially impressed with
the testimony of employee Scott, who although called to testify by the General Counsel,
candidly testified about the Respondent’s past practice of actively soliciting employee
suggestions and complaints and acting on them when possible. It seems to me that the efforts
by Prisc, Howell, and Wride to address employee complaints regarding the plant shift schedule
were merely part of a long term past practice by the Employer of addressing employee
complaints.
As Wride noted in his testimony, the actual change made to the shifts of the graveyard
employees was rather minor, affecting approximately 30 employees who had the start of their
work week changed from Monday night to Sunday night. Wride acknowledged addressing the
graveyard shift employees’ complaints when adjusting the schedule, but he also indicated that
in making the change he needed to address production and customer concerns. All the
witnesses who testified about the problems with the shift schedule acknowledged that this was a
contentious issue that the employees were always arguing about among themselves. As a
matter of fact, recently the schedule has been changed again, this time returning to rotating
shifts, the system that had been in effect prior to January 1, 2009.
I am of the opinion that the actions of Prisc, Howell, and Wride in addressing the
employee complaints about the shift schedule and in actually implementing a change in the
schedule did not constitute unlawful solicitation of grievances and implied promises of benefit in
an effort to coerce the employees into abandoning their support for the Union. The Respondent
had a long history of soliciting employee complaints and then attempting to address them.
These recent actions by the Respondent’s agents did not constitute a violation of the Act, as
they merely conformed to the Respondent’s past practice. Accordingly, I hereby recommend
that complaint paragraphs 7, 8, and 9 be dismissed.

11 Founders Day is a Utah State holiday to honor the pioneer settlers of the State.
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D. Summary of Unfair Labor Practice Findings
In summary, I have found that the Respondent violated Section 8(a)(1) of the Act, as
alleged in complaint paragraphs 5(a), (b), (c), (d), and 6. Further, I have recommended that
complaint paragraphs 7, 8, and 9 be dismissed.
IV. The Representation Case
As reflected in the Regional Director’s Order Directing Hearing on Objections to the
Election, there are three objections to the election, numbered 2, 3, and 4, which are referred to
the undersigned for resolution. These objections are coextensive with certain allegations in the
complaint where I have already concluded that unfair labor practices were committed by the
Respondent. Accordingly, I will not restate the issues underlying these matters, but only the
conclusions previously reached.
Objections number 2, 3, and 4 all concern the actions and statements of the
Respondent’s President, Frank McShane, at captive audience meetings held on October 28 and
November 11. As I have previously found that McShane committed the unfair labor practices
alleged in the complaint at the meetings held on November 10 and 11, it is unnecessary to
consider whether the same conduct was engaged in by McShane at the meetings on
October 28.12
Objection number 2 alleges that McShane made certain threatening comments
regarding a loss of the new Paid Time Off plan (PTO) if the Union won the election. As noted
above, I have concluded that McShane’s threats regarding the PTO constituted a violation of
Section 8(a)(1) of the Act, as alleged in complaint paragraph 5(a). Accordingly, I find merit to
this objection.
Objection number 3 alleges that McShane threatened not to announce and/or to
withhold the general wage increase if the Union won the election. I previously concluded that
McShane’s threats to employees to withhold the pre-determined wage increase, to not
announce it, and to not distribute it constituted violations of Section 8(a)(1) of the Act, as alleged
in complaint paragraphs 5(b) and (c). Accordingly, I find merit to this objection.
Objection number 4 alleges that McShane threatened employees with a loss of the
company 401(k) plan and replacement with an inferior plan if the Union won the election.
Previously, I concluded that McShane threatened that if the Union won the election, employees
would automatically be foreclosed from participating in their current company pension plan in
violation of Section 8(a)(1) of the Act, as alleged in complaint paragraph 5(d).13 Accordingly, I
find merit to this objection.

12 The complaint alleged that McShane’s unlawful conduct occurred at the captive audience
meetings of November 10 and 11. It did not allege unlawful conduct by McShane at the
meetings in October. The Union did not offer its own evidence on the objections, separate and
apart from that evidence offered by the General Counsel as to the alleged unfair labor practices.
Accordingly, there was rather limited evidence offered at the hearing regarding what transpired
at the October meetings, and that only as background information.
13 On a related allegation, complaint paragraph 6, I found that the Respondent unlawfully
maintained a written provision in its company pension plan that automatically denied eligibility to
employees who were represented by a union.
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As found by the undersigned, the Respondent has committed unfair labor practices
during the critical period between the filing of the petition and the election. It is well settled that
conduct during the critical period that creates an atmosphere rendering improbable a free
choice warrants invalidating an election. See General Shoe Corp., 77 NLRB 124 (1948). Such
conduct is sufficient if it creates an atmosphere calculated to prevent a free and untrammeled
choice by the employees. As the Board stated, “In election proceedings, it is the Board’s
function to provide a laboratory in which an experiment may be conducted, under conditions as
nearly ideal as possible, to determine the uninhibited desires of the employees.” General Shoe
Corp., supra, at 127.
I have found that the Respondent has committed numerous and significant unfair labor
practices during the critical period, which unfair labor practices also constitute objectionable
conduct. The Board has traditionally held that conduct violative of Section 8(a)(1) of the Act is
also conduct which interferes with the exercise of a free and untrammeled choice in an election.
As such, it serves as a basis for invalidating an election. According to the Board, conduct which
is violative of Section 8(a)(1) of the Act is, “a fortiori, conduct which interferes with the exercise
of a free and untrammeled choice in an election.” Playskoll Mfg. Co., 140 NLRB 1417 (1963);
see also IRIS U.S.A., Inc., 336 NLRB 1013 (2001); and Diamond Walnut Growers, Inc., 326
NLRB 28 (1988). Further, the Board has held that this is also “because the test of conduct
which may interfere with the ‘laboratory conditions’ for an election is considerably more
restrictive than the test of conduct which amounts to interference, restraint, or coercion which
violates Section 8(a)(1).” Dal-Tex Optical Co., 137 NLRB 1782 (1962). See also Overnite
Transportation Co., 158 NLRB 879 (1966); and Excelsior Underwear, 156 NLRB 1236 (1966).
Contrary to the position taken by counsel for the Respondent in his post-hearing brief,
none of the unfair labor practices committed by the Respondent during the critical period would
constitute a de minimis exception to that general proposition as recognized by the Board. Bon
Appetit Management Co., 334 NLRB 1042 (2001); and Caron International, Inc., 246 NLRB
1120 (1979). Section 8(a)(1) violations fall within the de minimis exception only when these
violations “are such that it is virtually impossible to conclude that they could not have affected
the results of the election. Super Thrift Markets, 233 NLRB 409, 409 (1977), cited in Sea
Breeze Health Care Center, 331 NLRB 1131 (2000).
In the matter at hand, McShane was the Respondent’s President, and a visitor from the
Respondent’s corporate headquarters. He was obviously a very important official in the
Respondent’s hierarchy. Because of his position, his words to the assembled employees on
November 10 and 11, 2008 would have carried great weight. Further, his statements regarding
the employees’ PTO plan, pension plan, and general wage increase concerned critical matters
of wages and benefits that employees would naturally have been very concerned about.
McShane’s not so veiled threats to restrict those wages and benefits if the Union won the
election were of the kind designed to make employees hesitant to support the Union, and would
have clearly affected the results of the election. Thus, despite the significant majority of
employees who voted against the Petitioner, I do not believe “that it is virtually impossible to
conclude that the election outcome has been affected.” Thrift Markets, supra.
I conclude that the unfair labor practices committed by the Respondent during the critical
period constituted objectionable conduct that interfered with the free choice of employees in the
election. Such conduct constitutes grounds for setting aside the election. These were
significant unfair labor practices and objections, which would clearly have had a tendency to
seriously inhibit the employees’ willingness to engage in union activity, and would likely have
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created an atmosphere unconductive to a free and untrammeled choice by the employees. The
Employer’s conduct destroyed the laboratory conditions required by the Board. Therefore, I
recommend that the election be set aside and a new election conducted.
Conclusions of Law
1. The Respondent, Longview Fibre Paper and Packaging, Inc., is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Association of Western Pulp and Paper Workers, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By the following acts and conduct the Respondent has violated Section 8(a)(1) of the
Act:
(a) Threatening employees with the loss of their Paid Time Off plan (PTO) if the Union
won the election;
(b) Threatening employees with withholding and failing to announce the amount of a pre-
determined annual wage increase if the Union won the election;
(c) Threatening employees with the loss of their annual wage increase if the Union won
the election; and
(d) Maintaining until January 1, 2009, in its written company pension plan, an eligibility
provision that automatically foreclosed employees from participating if they were represented by
a union.
4. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
5. The Respondent has not violated the Act except as set forth above.
6. By the conduct as set forth above in Conclusions of Law 3(a), (b), and (c), the
Respondent has improperly interfered with the representation election conducted by the Board
in Case 27-RC-8534. Accordingly, I recommend that the election be set aside and a new
election be conducted at a date and time to be determined by the Regional Director for Region
27.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent shall be required to post a notice that assures its employees that it will
respect their rights under the Act.
As the Respondent has already amended its company documents to expunge any
language suggesting that employees who are represented by a union are automatically
foreclosed from eligibility in its pension plan, it will not be necessary to Order it to do so.
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In the complaint, the General Counsel seeks an Order requiring the Respondent, in
addition to the traditional notice posting remedy, to send its employees the Board’s notice “in or
as an attachment to an electronic mail message in the same manner as the Respondent sends
announcements or other messages to employees.” However, at the hearing no evidence was
offered regarding the manner in which the Respondent normally sends announcements or other
messages to employees. Counsel for the General Counsel did not raise this issue at the
hearing, and in her post-hearing brief she did not specifically seek this extraordinary remedy.
As there is no evidence of record to support a contention that such an extraordinary remedy is
in any way warranted in this case, I shall not require electronic posting. Based on the evidence
of record, the traditional physical notice posting is adequate to remedy the Respondent’s unfair
labor practices.
Additionally, as indicated above, I have found that the Respondent engaged in
objectionable conduct affecting the results of the election in Case 27-RC-8534. I recommend,
therefore, that the election in this case held on November 13 and 14, 2008, be set aside, that a
new election be held at a date and time to be determined in the discretion of the Regional
Director for Region 27, and that the Regional Director include in the notice of the election the
following language:
NOTICE TO ALL VOTERS
The election held on November 13 and 14, 2008, was set aside because the National Labor
Relations Board found that certain conduct of the Employer interfered with the employees’
free exercise of a free and reasoned choice. Therefore, a new election will be held in
accordance with the terms of this Notice of Election. All eligible voters should understand
that the National Labor Relations Act gives them the right to cast ballots as they see fit and
protects them in the exercise of this right free from interference by any of the parties.14
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended15
ORDER
The Respondent, Longview Fibre Paper and Packaging, Inc., its officers, agents,
successors, and assigns shall
1. Cease and desist from:
(a) Threatening employees with the loss of their Paid Time Off plan (PTO) if the Union
won the election;

14 Lufkin Rule Co., 147 NLRB 341 (1964).
15 If no exceptions are filled as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes. Pursuant to Section 102.69(f), because the representation case has
been consolidated with these unfair labor practice cases for purpose of hearing, the provisions
of Section 102.46 also govern with respect to the filing of exceptions or an answering brief to the
decision and recommendation in Case 27-RC-8534.
JD(SF)–47-09
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(b) Threatening employees with withholding and failing to announce the amount of a pre-
determined annual wage increase if the Union won the election;
(c) Threatening employees with the loss of their annual wage increase if the Union won
the election;
(d) Maintaining in its written company pension plan, an eligibility provision that
automatically foreclosed employees from participating if they were represented by a union; and
(e) In any like or related manner interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days after service by the Region, post at its facility in Spanish Fork, Utah,
copies of the attached notice marked “Appendix.”16 Copies of the notice, on forms provided by
the Regional Director for Region 27, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
September 3, 2008; and
(b) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
IT IS FURTHER ORDERED that the Regional Director for Region 27 shall set aside the
representation election in Case 27-RC-8534, and that a new election be held at a date and time
to be determined in the discretion of the Regional Director.
Dated at Washington, D.C., December 17, 2009
_______________________
Gregory Z. Meyerson
Administrative Law Judge

16 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. Specifically:
WE WILL NOT threaten you with a loss of your Paid Time Off plan (PTO) if you support the
Association of Western Pulp and Paper Workers (the Union), or any other union.
WE WILL NOT threaten you with withholding and failing to announce the amount of a pre-
determined wage increase if you support the Union, or any other union.
WE WILL NOT threaten you with a loss of your annual wage increase if you support the Union,
or any other union.
WE WILL NOT maintain in our company pension plan an eligibility provision that automatically
prohibits you from participation if you are represented by the Union, or any other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Federal labor law, including the right to vote for the
Union, or any union, to represent you in collective bargaining with us.
Longview Fibre Paper and Packaging, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
600 17th Street, 7th Floor, North Tower
Denver, Colorado 80202-5433
Hours: 8:30 a.m. to 5 p.m.
303-844-3551
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 303-844-6647.